Don't Post Those New NLRB Notices Just Yet—Maybe

April 16, 2012

As of this moment, April 30 is still your drop-dead date to post the NLRB's new employee rights notice. On April 13, however, a South Carolina federal court put that date, and the NLRB's entire poster itself, in grave jeopardy. In Chamber of Commerce of the United States v. NLRB [pdf], the United States District Court for the District of South Carolina invalidated the NLRB's attempt to force employers to post a statement of employees' rights under the National Labor Relations Act.

According to the Court, the NLRB's powers are reactive, not proactive. Thus, its congressionally mandated duty is to prevent and resolve unfair labor practice charges and to conduct representation elections—both of which must be initiated by an outside party's filing. The NLRB's proposed posting of employee rights, however, is proactive—it requires employers to do something without any filing by an outside party. As such, the NLRB exceeded its statutory authority.

The South Carolina court is not the first to rule on this issue. Last month, a different federal court reached the opposite conclusion and upheld the NLRB's right to require most of the posting. The NLRB is reviewing its options as to whether it will postpone the posting requirement nationwide in light of the latest ruling. Likely, it will take some time for these issues to weave their way through the appellate courts for an ultimate resolution.

We now have two conflicting district court opinions. As an employer, what are you supposed to do? For now, and until you hear otherwise, assume that April 30 is still a go for the new posting. In the meantime, this case—which is the strongest rebuke to date of the power-grab by this administration's agencies—is a huge victory for employers.